[2000] HCA 54
Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1
[2010] NSWCCA 194
Govindaraju v Regina [2011] NSWCCA 255
Lam v R
Lam v R [2015] NSWCCA 87
Lowndes v The Queen (1995) 195 CLR 665
Source
Original judgment source is linked above.
Catchwords
[2013] NSWCCA 118
Dinsdale v R (2000) 202 CLR 321[2000] HCA 54
Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1[2010] NSWCCA 194
Govindaraju v Regina [2011] NSWCCA 255
Lam v RLam v R [2015] NSWCCA 87
Lowndes v The Queen (1995) 195 CLR 665[1999] HCA 29
Markarian v The Queen (2005) 228 CLR 357[2005] HCA 25
Muldrock v The Queen (2011) 244 CLR 120[2011] HCA 39
Parker v Director of Public Prosecutions (1992) 28 NSWLR 282
Paxton v R (2011) 219 A Crim R 104[2011] NSWCCA 242
R v PGM (2008) 187 A Crim R 152[2008] NSWCCA 172
Re Minister for Immigration and Multicultural and Indigenous AffairsEx parte Lam (2003) 214 CLR 1[2002] NSWCCA 34
R v Saleh, Haissan [2016] NSWCCA 216.
R v Slater (2001) 121 A Crim R 369[2001] NSWCCA 65
Saleh, Kassim v R [2016] NSWCCA 317
Stokes v Regina (2008) 185 A Crim R 74[2008] NSWCCA 123
Tiknius v R (2011) 221 A Crim R 365[2011] NSWCCA 215
The Queen v Olbrich (1999) 199 CLR 270[1999] HCA 54
Toole, Kurt v R
Toole, Joshua v R (2014) 247 A Crim R 272
[2014] NSWCCA 318
Vaiusu v R [2017] NSWCCA 71
Wong v R (2001) 207 CLR 584
Judgment (3 paragraphs)
[1]
The applicant's penalty is not manifestly excessive
As earlier discussed, the sentence imposed on the applicant had to reflect not only the drugs involved in his supply, but also what he actually did, as well as his subjective circumstances and the need for deterrence to feature in his sentence, for the reasons discussed in Toole at [118]. The comparisons now relied on do not establish that the sentence imposed upon him for his offending was, in the result, manifestly excessive.
The total amount of methylamphetamine Kurt Toole supplied was not significantly greater than that which the applicant supplied, but his role in the enterprise he conducted with his brother Joshua, was certainly greater. The applicant's role was less than that of either the Lam brothers, or Mr Wienand, or Hassain or Kassim Saleh, who were each also involved in greater supply.
The applicant's role was not as significant as that of Kurt Toole, although it is relevant that the drug syndicate in which the applicant was involved required the applicant to come from Hong Kong to Australia, to transport the methylamphetamine involved in his offence, across the country. It is apparent that by what the applicant agreed to do, in return for the forgiveness of his debt, was that he became an essential cog in the wheel of its distributions in Australia.
The applicant's inexperience in the role which he had agreed to play was, however, revealed not only by his lack of prior record and his apparently limited means, but also by the circumstances in which he came to be arrested, when he approached a police officer conducting a drug dog operation, at the train station. The naivety involved in that conduct was properly taken into account by the sentencing judge.
His Honour also properly concluded that the applicant, not having given evidence, could not be found to have agreed to transport the drugs as the result of duress. While the size of his drug debt is unknown, its forgiveness reflected that the applicant was to receive more for his participation than merely a meal and an unspecified handling charge, for agreeing to transport the drug.
It is when all of these matters are considered in light of the increased penalties introduced for the applicant's offending by the 2015 regulatory amendments, that it cannot be concluded that the sentence imposed upon him was manifestly excessive. The comparisons sought to be drawn on this appeal do not support a different conclusion.
It may not be overlooked that Kurt Toole's sentence commenced at about 13 years and 6 months and the applicants at 11 years, prior to discount. There is thus in reality but little disparity between the sentence imposed on Kurt Toole and that imposed on the applicant, when the differences in the amounts they respectively supplied, namely 1,005.5g as opposed to 923.1g, the differences in their roles, what they respectively did and the change in the sentencing regime, are all taken into account.
The Lam brothers' offending was unarguably more serious than that which the applicant committed, given their respective roles in the commercial drug operation in which they each participated and what was supplied. Given the analysis undertaken in Toole, however, theirs were undoubtedly lenient sentences for their respective offending. When that is considered together with the amendment to the sentencing regime, it cannot be concluded that the sentence imposed on the applicant was manifestly excessive.
The same conclusions must be reached in relation to the comparison sought to be drawn with the sentences imposed on Mr Wienand and Kassim and Hassain Saleh. Given what they each supplied, their respective roles, the starting points for their respective sentences and the impact which the change in the sentencing regime had on the applicant's sentence, that his sentence was manifestly excessive is not established.
In the result, I consider that the applicant has not established that the sentence imposed upon him was manifestly excessive.
[2]
Orders
The orders I would make are:
1. Leave to appeal granted.
2. Appeal dismissed.
[3]
Endnotes
See, eg, Parker v Director of Public Prosecutions (1992) 28 NSWLR 282.
R v Tak Hok Chong [2016] NSWDC 248 at [28] ("Chong").
Chong at [33].
Chong at [33], referring to Butters v R [2010] NSWCCA 1 at [18].
[1984] 2 NSWLR 441 at 446-447 (Street CJ, Glass JA and Yeldham J agreeing).
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Decision last updated: 02 August 2017
Parties
Applicant/Plaintiff:
Chong
Respondent/Defendant:
R
Legislation Cited (4)
Drug Misuse and Trafficking Amendment (Methylamphetamine) Regulation 2015(NSW)
Solicitors:
CBD Criminal Defence Lawyers (Applicant)
Solicitor for Public Prosecutions (Crown)
File Number(s): 2015/362460
Publication restriction: No
Decision under appeal Court or tribunal: District Court of NSW
Jurisdiction: Criminal
Citation: R v Tak Hok Chong [2016] NSWDC 248
Date of Decision: 14 October 2014
Before: Hatzistergos DCJ
File Number(s): 2015/362460
Was the applicant denied procedural fairness?
When a complaint about denial of procedural fairness is advanced, what arises to be considered is the concern of the law, "to avoid practical injustice": Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1; [2003] HCA 6 at [37]. When the cases which the parties advanced are properly considered it is apparent that the applicant suffered no injustice at the sentencing hearing.
The complaints now advanced concern adverse conclusions which his Honour reached about the applicant's role, his motive and the limited weight given to certain mitigating factors on which he had relied. In the circumstances, the applicant argued, he ought to have been given an opportunity to be heard on findings which aggravated his offence: Stokes v Regina (2008) 185 A Crim R 74; [2008] NSWCCA 123 at [13] - [15].
It was submitted that his Honour was bound by what was discussed in Cherdchoochatri v R (2013) 277 FLR 126; [2013] NSWCCA 118 at [46] - [51]:
"[46] The applicant's evidence was plainly directed to establishing that the reason for his participation in the offence was the duress to which he claimed to have been subjected. He explicitly and unequivocally said that he made the decision to participate because of the threats to his family. It is true that his Honour did not expressly reject this. But in focusing only on financial gain, and in disregarding the applicant's evidence concerning his motivation, his Honour plainly, if implicitly, rejected that evidence.
[47] The present issue is whether, in the absence of notice given by the Crown to the applicant that his evidence was in contest, the judge was entitled to take that course.
[48] Counsel for the applicant relied upon two paragraphs from the decision of this Court in O'Neil-Shaw v R [2010] NSWCCA 42 (per Basten JA). Those paragraphs are in the following terms:
'[26] Statements of general principle must be understood in their context. Nothing in the statement set out above from Chow [see below] should be understood as inconsistent with the obligation of the sentencing judge to impose the appropriate sentence, based on the evidence properly before the court. As explained by Howie J in Palu [see below], the factual basis should be identified with particularity and disputed facts resolved by the accusatorial process upon the evidence before the court. Where the evidence was not challenged or disputed by the prosecution, and was not inherently implausible, his Honour was not entitled to reject it or fail to act on it, or at least was not entitled to do so without proper notice to the applicant that he intended to take that course.
[27] It is a basic rule of procedural fairness that a party who does not accept the evidence of a witness should put the alternative view in cross-examination, both so that the witness may respond and so that the court has the benefit of assessing the response ... Where there has been no cross-examination of witnesses to contest their evidence 'judges should in general abstain from making adverse findings about parties and witnesses': MWJ v The Queen [2005] HCA 74; 80 ALJR 329 at [39] (Gummow, Kirby and Callinan JJ).'
[49] The "statements of general principle" to which Basten JA referred appear in paras [23] and [24], preceding the paragraphs relied on on behalf of the applicant. The first is drawn from Chow v Director of Public Prosecutions (1992) 28 NSWLR 593, in which Kirby P set out principles governing the functions of prosecutors and judges involved in sentencing proceedings. The fifth principle is in the following terms:
'The foregoing rules do not oblige a sentencing judge passively, and unquestioningly, to accept facts as the basis for sentencing which are presented by the prosecution and/or the accused. The judge's sentencing discretion is to be exercised in the public interest. Even where the prosecution and the accused are agreed, they cannot fetter the judge's performance of the judicial function by their plea bargaining: see Malvaso v The Queen ... [[1989] HCA 58; 168 CLR 227]'
[50] The second "statement of general principle" was drawn from the decision of this Court in R v Palu [2002] NSWCCA 381; 134 A Crim R 174, and is in the following terms:
"[21] It behoves the parties, especially after a 'plea bargain', to ensure that the sentencing court is made aware from the outset of the proceedings whether there is any dispute as to the factual basis upon which the offender is to be sentenced and identify with particularity what matters are in issue. Disputed facts are to be resolved by accusatorial process upon evidence before the court: Chow ... at 604-608 ..."
[51] It is worth also noting a brief passage from the judgment of Johnson J in O'Neil-Shaw. His Honour said:
'[50] Where affidavits are read without objection in civil proceedings, with deponents not being required for cross-examination, the rule is that such evidence should be accepted unless there is a credible body of evidence of a substantial character in direct contradiction of the non cross-examined evidence ...'
It may be that his Honour regarded that principle as also applicable in criminal proceedings. If that is so, I would venture to suggest that the principle is stated too broadly. Criminal proceedings, including (and possibly especially) sentencing proceedings, are more than interpartes litigation. A sentencing judge must have regard not only to the often competing positions of the Crown and the person the subject of the proceedings, but also to the public interest in criminal justice. That interest extends to the imposition of a sentence correctly within the appropriate range. That, in turn, extends to a proper and critical examination of all material put before the sentencing judge. A judge is not bound 'passively and unquestioningly' to accept an account, apparently mitigatory, of an offender's motivation for becoming involved in an offence."
Was the sentence manifestly excessive?
I am also satisfied that the second ground has not been established.
The maximum penalty imposed for the applicant's offence is now life imprisonment and the standard non-parole period for a mid-range offence is 15 years. His Honour's starting point for the applicant's sentence was 11 years, reduced by 25% for the early plea, with the result of a total sentence of 8 years and 3 months imprisonment. On the applicant's case, however, despite his Honour accepting his case that objectively, his offence fell below the mid range, the sentence imposed upon him should have been lower, given his role, the quantity of the drug involved in his offence and his subjective circumstances.
In resolving what lies in issue on this ground, it must be remembered that an appellate court may not substitute its own opinion for that of the sentencing judge, merely because it would have exercised the sentencing discretion differently: Lowndes v The Queen (1995) 195 CLR 665; [1999] HCA 29 at [35]. As discussed in Markarian v The Queen at [25]:
"As with other discretionary judgments, the inquiry on an appeal against sentence is identified in the well-known passage in the joint reasons of Dixon, Evatt and McTiernan JJ in House v The King … itself an appeal against sentence. Thus is specific error shown? (Has there been some error of principle? Has the sentence allowed extraneous or irrelevant matters to guide or affect the decision? Have the facts been mistaken? Has the sentence not taken some material consideration into account?) Or if specific error is not shown, is the result embodied in the order unreasonable or plainly unjust? It is this last kind of error that is usually described, in an offender's appeal, as 'manifest excess', or in a prosecution appeal, as 'manifest inadequacy'."
In Wong v R (2001) 207 CLR 584; [2001] HCA 64 it was explained at [58]:
"... appellate intervention is not justified simply because the result arrived at below is markedly different from other sentences that have been imposed in other cases. Intervention is warranted only where the difference is such that, in all the circumstances, the appellate court concludes that there must have been some misapplication of principle, even though where and how is not apparent from the statement of reasons. It follows that for a court to state what should be the range within which some or all future exercises of discretion should fall, must carry with it a set of implicit or explicit assumptions about what is, or should be regarded as, the kind of case which will justify a sentence within the specified range. It is those assumptions that may reflect or embody relevant principle, not the result."
In Dinsdale v R (2000) 202 CLR 321; [2000] HCA 54 at [6] it was observed that manifest excess:
"… is a conclusion which does not depend upon attribution of identified specific error in the reasoning of the sentencing judge and which frequently does not admit of amplification except by stating the respect in which the sentence is inadequate or excessive. It may be inadequate or excessive because the wrong type of sentence has been imposed (for example, custodial rather than non-custodial) or because the sentence imposed is manifestly too long or too short. But to identify the type of error amounts to no more than a statement of the conclusion that has been reached. It is not a statement of reasons for arriving at the conclusion. A Court of Criminal Appeal is not obliged to employ any particular verbal formula so long as the substance of its conclusions and its reasons is made plain. The degree of elaboration that is appropriate or possible will vary from case to case."
Changes in the regulatory regime
One of the difficulties with the case which the applicant advanced, was that it did not pay necessary regard to the consequences of changes in the regulatory regime.
The quantity of drugs involved in a particular offence is not the principal determinant on sentencing, even though there is a gradation of seriousness related to quantity, which is reflected by the increase in penalty as the quantity of the drug becomes a commercial, or large commercial quantity: R v MacDonnell (2002) 128 A Crim R 44; [2002] NSWCCA 34 at [33].
Nevertheless, in this sentencing exercise, account had to be taken of the fact that some months before the applicant committed his offence, the trafficable quantity of methylamphetamine was reduced from 1kg to 500g by the Drug Misuse and Trafficking Amendment (Methylamphetamine) Regulation 2015 (NSW), which commenced on 1 September 2015. But for that change, the applicant's offence would have attracted a maximum penalty of 20 years imprisonment and a standard non-parole period of 10 years.
This development followed the analysis of sentencing in relation to the supply of methylamphetamine which was undertaken by R S Hulme AJ, with whom Basten JA and Button J agreed, in Toole, Kurt v R; Toole, Joshua v R (2014) 247 A Crim R 272; [2014] NSWCCA 318. There his Honour noted at [78] that a number of the cases referred to were decided before Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 and thus had to be approached with caution. I will return to the other authorities which R S Hulme AJ considered and summarised, but note that his Honour at [118] observed:
"There is one further matter to which I should advert. The courts cannot be unconscious of the increase in frequency of offences involving trafficking in amphetamines. Statistics published by the Bureau of Crime Statistics confirm that that is the case, the rate of offences per 100,000 of the population having roughly doubled over the last 10 years. Clearly the weight to be given by the courts to deterrence should also markedly increase and result in a commensurate increase in sentences. However, I have not found it necessary in considering this ground to place weight on this factor."
The result of the subsequent regulatory amendment was that the applicant's sentence had to be arrived at, taking into account that the standard non-parole period and the maximum penalty for his offence had been significantly increased. That undoubtedly reflected a view that such offending should attract a heavier penalty: R v PGM (2008) 187 A Crim R 152; [2008] NSWCCA 172 at [38].
That underscores the caution with which the cases on which the applicant relied on this appeal must be approached. Further, when such comparisons are sought to be drawn, the wide range of gravity, objective circumstances and differences in the subjective circumstances of the respective offending, which impact upon the range over which the sentencing discretion can be exercised, must also be borne in mind: see R v Slater (2001) 121 A Crim R 369; [2001] NSWCCA 65 at [52], albeit there in the context of the offence of murder.
In Lam v R; Lam v R [2015] NSWCCA 87 two brothers, Messrs Chun Kit Lam and Chun Lok Lam, also sought to appeal sentences imposed upon them for the supply of a large commercial quantity of methylamphetamine. They, too, failed.
The quantity involved in their offending was much greater than that which the applicant supplied, being 2,206.7 grams. The appeal was advanced on the grounds of disparity with the sentence imposed on a co-offender, Mr Wang, who had been sentenced to a term of imprisonment of 5 years, with a non-parole period of 2 years and 6 months, after a 25% discount for a plea. The Lam brothers' sentences, before discounts to each of 15%, were 7 years and 11 months and 5 years and 9 months respectively, by comparison to 6 years and 8 months, the starting point for Mr Wang's sentence prior to his discount. On the analysis in Toole, these were all low sentences.
Mr Wang's sentence was for two offences, the methylamphetamine supply offence and an offence of heroin possession, which attracted a maximum penalty of 25 years imprisonment, with two other offences taken into account on a form one, namely possession of a marketable quantity of cocaine and recklessly dealing with the proceeds of crime ($36,000). Chun Kit Lam's sentence included an offence of deriving a material benefit from a criminal group, under s 93TA of the Crimes Act 1900 (NSW), taken into account on a Form 1.
The Lam brothers were Chinese nationals resident in Hong Kong, who had been in Australia for some time on student visas. They and the syndicate they were involved in had come under police surveillance. The methylamphetamine was found at Mr Wang's apartment, together with drug supply paraphernalia and other drugs. Agreed facts were tendered with the sentencing judge accepting the Crown's position that Chun Kit Lam was less culpable than his brother and that they were both involved in a substantial commercial operation.
Mr Wang and Chun Kit Lam were found to have less senior roles in the drug supply operation than Chun Lok Lam, who was found to be an intermediary, the Crown accepting that he was not a principal.
A complaint of disparity proceeds on the basis of an acceptance that the sentence imposed on the applicant is otherwise appropriate: Lam at [25]. The claimed disparity was not established in either case.
All three of these offenders were, like the applicant, found to be young, with no prior convictions, a history of drug addiction, remorseful, at low risk of re-offending and with good prospects of rehabilitation. In the case of the older Lam brother, Chun Lok, his subjective case was not found to be as compelling as those of the other two offenders. There were also considerable differences in subjective factors, as between the Lam brothers and Mr Wang, whose background was considerably deprived, by comparison to theirs. In the result, non-parole periods fixed at 60% of the head sentence for Chun Kit, 67% of the head sentence for Chun Lok and 50% of the head sentence for Mr Wang, were imposed.
The distinguishing factor which may not be overlooked in this case is, of course, that the applicant did not give evidence. In the result, what was discussed in Cherdchoochatri is of little relevance in his case.
The applicant's case on this appeal was that his role was that of a courier, as the Crown had accepted on sentence. That, however, was disputed. The applicant argued that in those circumstances, in fairness, his Honour ought to have given notice that he took a different, adverse view of his role before concluding, as his Honour did, that his role was somewhat more than that of a courier; it having involved some planning on his part, to transport the drug.
The circumstances were thus argued to be similar to those which arose for consideration in Govindaraju v Regina [2011] NSWCCA 255 at [49] - [57], where it was concluded that the applicant had been denied procedural fairness, because it was not part of the Crown case at the sentencing hearing that the applicant's role was greater than that of a mere courier and no notice was given by the sentencing judge, that she may act on the basis that the history recorded in a psychiatrist's report was evidence capable of supporting a finding that his role was greater than that of a mere courier.
In the account which the applicant gave the psychologist, duress was the explanation which he gave for his involvement in the offending, given threats made to him and his family, if his drug debt was not paid.
The applicant thus argued that his Honour ought to have raised with the parties that he was minded to reject what was advanced on his behalf in relation to duress, in order to give him the opportunity to lead further evidence about that matter: R v Falls [2004] NSWCCA 335 at [35] - [38].
It was also submitted that while his Honour was entitled to reject his explanation in relation to duress, there was no basis in the evidence for the aggravating finding that he had arrived in Australia to supply drugs. There was also no notice given of that finding, which it was contended was not open on the evidence.
Further, it was argued to be contradictory to reject a portion of the account the applicant had given the psychologist, which mitigated his offending, namely duress, while also relying on another portion, to aggravate that offending, namely that he came to Australia to supply drugs.
In the result, his Honour ought to have raised the approach which he took to these matters with the parties. Not having done so, the applicant claimed he had been denied procedural fairness.
I am satisfied that these submissions cannot be accepted.
The difficulty with the case which the applicant advanced on appeal was that it does not accurately reflect either what was in issue on sentence, or the cases which the parties then advanced. Nor does it pay necessary regard to the consequences of the applicant having elected not to give evidence.
It is well established that in resolving what arises to be determined, a sentencing judge should take into account the fact that the applicant did not give evidence. This Court has repeatedly cautioned against an uncritical reliance on material contained in tendered reports, or other third party statements, where an offender does not give evidence: see Butters v R [2010] NSWCCA 1 at [18]. Whether to give evidence is a forensic decision to be made by the person being sentenced. The potential adverse consequences of such a decision are well known and do not require warning to be given by sentencing judges at the sentence hearing.
In the cases which the parties advanced at the sentencing, it is apparent that they bore in mind that it is well settled that in the case of supply offences, an offender's role is not to be determined by the use of short hand labels. What is required is an assessment of the offender's involvement in the steps taken to effect supply: Paxton v R (2011) 219 A Crim R 104; [2011] NSWCCA 242 at [135] applying The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54 at [14]. General descriptions of types of participation must not obscure the assessment of what the offender actually did: The Queen v Olbrich at [19]. Where the offender's role is not known, the court is not obliged to find facts favourable to the offender, or to accept his or her version of events: The Queen v Olbrich at [27] - [28].
The applicant is a Hong Kong national, who was arrested on 9 December 2015 at Central Railway Station in Sydney, in possession of a train ticket departing that day and arriving in Perth on 12 December 2015. He had entered the country on 17 October 2015, on a working holiday visa.
The Crown's case on sentence was that it was not only the quantity of drugs and their very high purity, 78.5%, which was relevant on the applicant's sentence, but also his role in the enterprise. It was accepted that there was no evidence of him being involved in sourcing or the point of supply and that his role "may be limited to that of a courier". But, it was also submitted that the authorities indicated that such enterprises "need persons like the offender to transport their goods and to supply the drugs within the State and in this case across the country". It was also argued to be relevant that on his own account, the applicant had been led to take receipt of the drug and to transport it, so that there was some degree of planning, organisation and involvement within the enterprise, on his part.
The Crown also contended that the fact that the applicant had come from a different country, to take the drug from Sydney to Western Australia, established "more than just the bare fact of being in possession of the commercial quantity". That was not disputed by the applicant, who argued, nevertheless, that he was only a courier.
The applicant submitted in written submissions that he did not stand to gain a profit and that there was no evidence to suggest that he was anything other than a courier, incidental to the entire enterprise and acting at the instigation and direction of others, with travel plans, flights and accommodation arranged or are least funded by others: Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 at [255].
There was but little evidence about these matters and the submission advanced was contrary to the evidence that it was the applicant who had paid for the train ticket, for which he was to be reimbursed in Perth.
In oral submissions it was argued that the applicant's offending was not the result of a well-planned or organised criminal syndicate, or a career criminal, given that he had walked up to a police officer operating sniffer dogs to ask for directions. It was also submitted to be relevant that there was no allegation that he had sourced the drug or was to gain financially. It was his escalating debts and desire to protect his reputation with his family, which had motivated his singular offending. It was accepted, however, in response to a question posed by his Honour, that his reward was to be relief from his debts.
The applicant's case on appeal, that his Honour departed from the parties' common position as to his role, can thus not be accepted. In resolving the issue as to the objective seriousness of the offending, his Honour had to take into account all that the evidence revealed as to what he had done, as the parties respectively contended.
Indeed at [29] his Honour accepted "that the facts themselves lend some credence to the offender being criminally inexperienced and not participating in any broader planning or organised activity with regard to the offending in that he approached police and was proximate to the drug detection dog whilst carrying the drugs." However, his Honour concluded at [35] - [36] that:
"[35] The offender submitted within the terms of s 21A(3)(a) of the 1999 Act that the drugs were intercepted and none of the drugs in relation to the offence charged were ever used, consumed or distributed into the community. That submission needs to be considered in light of what was said in Regina v Shi:
'[34] … culpability of those who engage, at any level, in drug supply networks is significant, and that deterrent sentences are necessary, since absent the involvement of couriers, warehousemen and so on, these networks, whether established for the purposes of importation or subsequent distribution, would simply collapse: R v Le Cerf (1975) 13 SASR 237 and R v Laurentio and Becheru (1962) 63 A Crim R 402.'
[36] As indicated, the offender's role involved some planning on his part to transport a prohibited drug. The quantity involved was marginally under double the threshold for a large commercial quantity and had a high purity of 78.5%. Bearing in mind that the large commercial quantity has no upper range and the level of the offender's involvement being somewhat more than a courier, I consider that the objective gravity of the offence falls just below the middle range of objective seriousness."
There was no error in his Honour's approach to these matters.
The parties' competing cases as to the applicant's role and what he in fact did, had to be resolved in light of the agreed facts and the untested account which the applicant had given the psychologist, Mr Watson-Munro, whose report he tendered. That account went to matters such as his remorse, duress, his means, how his travels were funded and the "handling fee" he was to be paid for transporting the ice. The latter matters were relevant to his role.
His Honour's conclusions about all of these matters were open on the evidence. They did not have to be raised further with the parties, before his Honour resolved what lay in issue about the objective seriousness of the offending which the applicant had admitted. They were all matters which his Honour had to take into account, when undertaking the instinctive synthesis discussed in Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [59] to arrive at the sentence.
On sentence there was also no issue that the evidence established how the applicant came to be in Australia, at the train station where he was arrested in Sydney, in possession of what he knew to be drugs, which he was about to transport by train to Perth. The agreed facts relevantly included:
A friend, who the applicant had first met on the internet and then in person in Hong Kong, had asked him to deliver a bag to a relative in Perth;
The bag containing the drugs had been delivered to him, where he was staying in Ashfield, at the beginning of the month, to keep safe and deliver to Perth, but he had not asked what was inside the bag;
He had looked inside the bag and was then unsure whether the white powder he saw there was drugs, but he had been told to keep it safe and deliver it;
It was when police searched the bag and removed the substance that he realised it was drugs;
He later told police he had touched the four packages inside the bag because he had never seen drugs before and did not know what kind of drugs they were;
He had paid for the train ticket, for which he was to be reimbursed in Perth; and
He was to be bought a meal and paid a "handling fee", when he returned to Sydney.
What the applicant later told Mr Watson-Munro was identified in his report to include that:
He had been addicted to ice while living in Hong Kong, with the result that he had a significant debt to his suppliers;
He had ceased using drugs in June 2015, but was under substantial duress, because of threats to him and his family, if the debt was not repaid;
He had not worked since he stopped using ice;
It was in that context that he agreed to transport ice from Sydney to Perth;
He was then living at home, but had to stay away from home for protracted periods, because he was unable to tell his parents what was happening;
The pressure and "loss of face" was unbearable and it was in that setting, that he acquiesced to the demand that he move the drugs between Sydney and Perth; and
He has no support from any individuals in Australia.
In the face of this evidence, the applicant's submission on appeal, that the source of his Honour's factual finding at [28] of the judgment is unclear, cannot be accepted. His Honour's finding at [28] was:
"The offender arrived in Australia on 17 October 2015. On his account, the bag was delivered to him in Ashfield where he was staying. Nevertheless, it is clear that he arrived in Australia for the purpose of delivering the bag and to this end, arranged and paid for a rail trip to Perth himself."
Contrary to the applicant's submissions, that he arrived in Australia for the purpose of delivering the bag was entirely open on the agreed facts and on what Mr Watson-Munro's report revealed as to what the applicant had him. That was the case which the Crown advanced. It was not put in issue by the applicant. Whether or not the applicant had some other purpose for coming to Australia was irrelevant and not touched on by the evidence or submissions advanced.
His Honour's finding about the purpose of the applicant's entry into Australia, did not preclude him rejecting the applicant's case that he had agreed to deliver the drug from Sydney to Perth, because of duress. Relevant to that question was the concession that his reward was to be the forgiveness of the debt he had told Mr Watson-Munro about.
As discussed in Tiknius v R (2011) 221 A Crim R 365; [2011] NSWCCA 215 at [44] - [46]:
"[44] There have been a number of cases where an offender claims on sentence that his or her involvement in a drug importation or supply offence was the product of threats to self and family, with the threats sometimes coupled with the demand by those making the threats that involvement in the drug supply or importation is required to discharge an existing debt. Whether an offender's claim of this type is accepted depends, of course, on the facts of the particular case.
[45] Speaking generally, sentencing courts are entitled to approach claims of this sort with a significant degree of circumspection. Claims may be easily made concerning the alleged conduct of persons in another country which is said to have applied pressure upon an offender: Anna Le v R [2006] NSWCCA 136 at [32]. It has been said that verification of a spurious claim of duress may prove difficult: R v Z at 492 [22].
[46] A careful and close assessment of evidence adduced to support such a claim should be made, with the onus of proof upon the offender kept firmly in mind."
That was how his Honour approached this sentencing task. As to duress, he observed at [31] - [33]:
"[31] The source of the asserted duress is the conduct of persons in another country - a claim that could be easily made. Beyond this, the statements were made to a third party and were not tested in Court. The Court of Criminal Appeal has previously stated that considerable caution needs to be exercised in relying on such statements made in such circumstances, without the offender giving any evidence and the Crown not conceding it. Indeed the practice of placing material before a sentencing Judge in an attempt to minimise the objective seriousness of a crime, otherwise apparent on the face of the record, has been the subject of criticism. In the circumstances I am unable to find non-exculpatory duress.
[32] However, even if the offender's judgment were clouded by his previous addiction and need to repay creditors it provides little mitigation to the objective seriousness of the offence.
[33] The offender claimed that he did not stand to gain a profit from the offending, but was "going to be bought a meal and paid a handling fee in exchange for making the delivery" and that he performed the task to pay off a drug debt. Again, these were untested self-serving statements and it is appropriate to exercise significant caution in relation to them. In the circumstances I am not satisfied as to the precise nature of any arrangement. (citations omitted)"
In arriving at the sentence, his Honour also had to bear in mind that in Regina v Shi, Wood CJ at CL, with whom Spigelman CJ and Simpson J agreed, emphasised at [34] the importance of sentencing judges giving consideration to:
"… the well-recognised principle that the culpability of those who engage, at any level, in drug supply networks is significant, and that deterrent sentences are necessary, since absent the involvement of couriers, warehousemen and so on, these networks, whether established for the purposes of importation or subsequent distribution, would simply collapse: R v Le Cerf (1975) 13 SASR 237 and R v Laurentiu and Becheru (1992) 63 A Crim R 402."
The applicant also contended that in undertaking the sentencing exercise, his Honour gave insufficient weight to the fact that the drugs had been intercepted by police, so that no harm resulted from his offending and his communication difficulties, which he concluded did not give rise to justifiable complaint.
Conclusions about the weight to be given to particular factors relevant to the sentence imposed, fall to sentencing judges and will not lightly justify intervention on appeal: Vaiusu v R [2017] NSWCCA 71 at [29]. In any event, the views which his Honour took about those matters were entirely open on the evidence.
As discussed in AB v R [2013] NSWCCA 273 at [292], if the drugs had been disseminated into the community, that would have constituted a significant aggravating factor in the applicant's case. The absence of that factor did not, however, translate it into a mitigating factor. To the contrary, where police operations have the result that drugs are not actually disseminated, the offender's moral culpability for the offence is not thereby reduced.
His Honour had to approach the applicant's communication difficulties in the way discussed in R v Ferrer-Esis (1991) 55 A Crim R 231 at 239 by Hunt J, with whom Gleeson CJ and Lee CJ at CL agreed:
"There were a number of subjective facts which the judge took into account. The respondent is incarcerated in a foreign country, living amidst a foreign language and a foreign culture. He is isolated from any outside contact. However, with all due respect to views to the contrary which may have been expressed by others, I do not consider that very much weight should be given to that particular circumstance.
The fact is that any person who comes to this country specifically and quite deliberately to commit a serious crime here (as did the respondent) has no justifiable cause for complaint when, as the inevitable consequence of the discovery of his crime, he is obliged to remain incarcerated in this country, with its language and culture foreign to him, isolated from outside contact."
In fact, his Honour did take the applicant's difficulties into account, in arriving at his finding of special circumstances. At [42], his Honour explained his conclusions by reference to the applicant's age, good prospects of rehabilitation, limited education, lack of qualifications, lack of family support, isolation, his psychological issues and inability to communicate effectively with other inmates and staff.
In the result, this ground of appeal must be dismissed.
The cases relied on to demonstrate that the sentence imposed upon the applicant was manifestly excessive were not drawn to the sentencing judge's attention. Had they been, what was decided in Toole, would also have arisen to be considered.
The appeals failed because it was found that the sentences imposed on both Lam brothers were not heavy, given their role in a significant drug syndicate and the quantity of the methylamphetamine involved in their offences.
In Wienand v R [2013] NSWCCA 202, another parity appeal failed. Mr Wienand's offence involved supplying 1,848.6 grams of methamphetamine in four transactions. Mr Wienand was the middle man between his co-offender Mr Hill and the principal, AM, who was the head of the supply chain. Mr Hill received no financial benefit for the first two transactions, $1,000 for the third and $1,500 for the fourth. Mr Wienand was to receive $3,500 for the last transaction alone.
Mr Wienand's subjective circumstances were unlike those of the applicant. Mr Wienand was not a young offender, although he had no record of drug offending and only minor convictions otherwise, his most serious offence being a breach of an apprehended violence order.
The objective seriousness of Mr Hill's offence was found to be below, but not far below the mid-range. The starting point of his sentence was 12 years and Mr Wienand's 10 years and 8 months, even though Mr Wienand was higher in the drug hierarchy and had achieved higher remuneration for his participation.
On appeal, Mr Hill's sentence was reduced from a non-parole period of 4 years with a balance of term of 2 years to a non-parole period of 2 years and a balance of term of 1 year, given the sentencing judge's failure to take into account his strong subjective case. That reflected a starting point of 6 years, prior to a discount of 50% for assistance.
Mr Wienand's discount was 25%. The result was that while he had been sentenced to a non-parole period of 5 years and 6 months for his offending and Mr Hill only 2 years, no unjustified disparity was found.
In Saleh, Kassim v R [2016] NSWCCA 317 a plea was entered to an offence of supply of 2kg of amphetamine in 2013. The appeal in respect of disparity was not pressed in relation to the co-offender Mr Saleh Haissan, his sentence having been increased on appeal in R v Saleh, Haissan [2016] NSWCCA 216. Rather, it was pressed in relation to his other co-offender JK.
These offenders had also become the subject of a police investigation, which revealed that Kassim Saleh had introduced his uncle Haissan to an intermediary JK, who introduced him to a supplier from whom he tried to source 2kg of methamphetamine.
Haissan Saleh was 43 at the time of his offending. He had a considerable record, including offences of violence and dishonesty, but this was his first custodial sentence. He was sentenced to imprisonment for a non-parole period of 3 years and 6 months and a balance of term of 1 year and 2 months, a total of 4 years and 8 months, after a 25% discount for count 1 and a 10% discount for count 2, plus an additional 20% discount for both counts for assistance. The indicative sentences for the two charges for which he was sentenced were explained in R v Saleh, Haissan at [3] to be:
"(1) for count 1 (supply of approximately 1 kg), a non-parole period of 2 years 7 months and a balance of term of 11 months (overall 3 years 6 months); and
(2) for count 2 (knowing concern in supply of 2 kg), a non-parole period of 3 years 1 month and a balance of term 1 year 1 month (overall 4 years 2 months)."
It was concluded on appeal that the starting point for Hassain Saleh's sentence was very significantly below sentences which have generally been passed for offences of this type and gravity, discussed in Toole at [86] - [99]. He was found to be effectively a middle man or procurer of two wholesale quantities from separate up-line suppliers: at [20]. It was also found that the discount given to Hassain Saleh for assistance was excessive. It was thus reduced from 20% to 10% for both counts: see [17] - [18].
With combined discounts for the plea and assistance, reduced to 35% for count 1 and 20% for count 2, the total aggregate sentence imposed on Haissan Saleh was increased to 9 years and 4 months with a non-parole period of 7 years and a balance of term of 2 years and 4 months. The indicative sentences were increased to:
"For count 1, a non-parole period of 4 years with a balance of term of 1 year 4 months (total 5 years 4 months);
For count 2, a non-parole period of 6 years with a balance of term of 2 years (total 8 years)."
For the drug supply offence (count 1) that was a starting point of 6 years and 2 months with a balance of term of 2 years, before the 35% discount: at [24].
For reasons which it is not necessary to explain, JK's charge concerned the supply of 7.977 kg of methamphetamine. He was found to have been active in locating the supplier who facilitated the transaction by which another co-offender, Mr Zolfonoon, would acquire multiple kilograms of methamphetamine. JK was 20 at the time of the offence and was sentenced to 3 years imprisonment with a non-parole period of 1 year and 3 months, after a 40% discount for an early plea and assistance.
JK was a regular cocaine user, but he did not expect to be paid for effecting the introductions he made and did not believe that by making them, he was involved in the buying and selling of drugs. He was found to have had no role in actual supply and no role in any hierarchy of supply in the commercial dealing of drugs. He was also found to be outside the enterprise of both the seller and the purchaser, merely being acquainted with each. Those circumstances explain the low sentence imposed upon him.
Kassim Saleh was aged 26 at the time of his offending. He had formed a close relationship with his uncle Hassain. His offence was found to be objectively more serious than that of JK. He expected to obtain personal benefit from the transaction which he facilitated at his home and attended, whereas JK did not. Kassim Saleh had built up a successful bricklaying business employing up to nine people and helped support members of his family in identified ways. He had a record of minor drug possession offences in 2005 and 2013, but his subjective circumstances were found to be less powerful than those of JK.
Kassim Saleh entered a late plea and was sentenced to a term of 4 years and 11 months imprisonment with a non-parole period of 3 years. The amount of his discount is not specified in Saleh, Kassim v R, but it must have been substantially less than that which JK received, given that it was late and he gave no assistance. His appeal was dismissed. If he had been given a 10% discount, the starting point for Kassim Saleh's sentence is likely to have been 5 years and 5 months.